50 Problematic Cases

With help from colleagues in the academy and legal profession, the Judicial Power Project has compiled a list of 50 “problematic” cases. The cases are listed in no particular order. For brief discussion of the purpose of this list and how we compiled it, click here. A PDF version of the list can be found here. Click on the tabs below to read a brief summary of each of the cases.

1. Hirst v United Kingdom No.2 (2006)

The Strasbourg Court stretches the “living instrument” approach to interpretation to breaking point by holding that the UK “blanket ban” on prisoner voting is contrary to the ECHR. In Scoppola v Italy (No 3) (2012), the Court doubled down, upholding Hirst in order to defend its own reputation, in the very act of inconsistently permitting Italian “blanket ban” disqualification of certain classes of prisoner. Case in full

2. Gerhard Köbler v Republic of Austria (2003)

The Luxembourg Court expands state liability for failure to comply with EU Law to include national courts. The decision unsettles national judicial hierarchies by allowing litigants to challenge judicial decisions via an action for damages against the state and creates the possibility that a lower court might be required to review the decision of a superior court. Case in full

3. R (Jackson) v Attorney General (2005)

In obiter dicta, three Law Lords turn constitutional orthodoxy on its head by suggesting—without authority and with shaky reasoning—that courts can strike down Acts of the UK Parliament. Case in full

4. AXA General Insurance Limited v Lord Advocate (2011)

The Supreme Court speculates that Acts of the Scottish Parliament are subject to judicial review at common law, but not on the grounds of irrationality, unreasonableness or arbitrariness. Whilst suggesting that courts owe deference to the Scottish Parliament given that it is a democratically elected legislature, the Court nonetheless asserts that Acts of the Scottish Parliament that violated the rule of law would nevertheless still be struck down. Case in full

5. Recovery of Medical Costs for Asbestos Diseases (Wales) Bill: Reference by the Counsel General for Wales (2015)

The Supreme Court determined that the Recovery of Medical Costs for Asbestos Diseases (Wales) Bill fell outside the legislative competence of the Welsh Assembly. In reaching this decision, the Court seems to overlook almost entirely the deference to the legislature qua legislature suggested by the Court in AXA. Case in full

6. R (Purdy) v Director of Public Prosecutions (2009)

The Law Lords ride roughshod over the executive power that Parliament had conferred on the Director of Public Prosecutions in the Suicide Act 1961 in the difficult moral and social context of the legal regulation of assisted suicide. The Supreme Court takes the right to know whether one’s contemplated action would be crime as basis for an unheard-of right to know whether one will be prosecuted for one crime. Case in full

7. Bromley Borough Council v Greater London Council (1981)

After a Conservative-run council challenges the decision of the Labour-run GLC to implement its manifesto commitment to subsidize tube fares, the Law Lords effectively tell the GLC where the public interest lies in the allocation of public monies and seriously undercut the usual workings of political accountability. Case in full

8. R (Evans) v Attorney General (2015)

The Supreme Court ignores the limits of the judicial role by rewriting the Freedom of Information Act to effectively remove the power to prevent the publication of information that the UK Parliament had conferred on the Attorney General. Case in full

9. Vinter v United Kingdom (2013)

The Strasbourg Court decided that whole-life sentences in English law breached Art 3 ECHR (prohibiting inhuman and degrading treatment) because there was no prospect of release or possibility of a review of the sentence. As the Court of Appeal subsequently explained, Strasbourg had misunderstood English and Welsh law, which provides for the possibility of review and release via section 30 of the Crime (Sentences) Act 1997. Case in full

10. Rookes v Barnard (1964)

With no regard for the political sensitivities surrounding the regulation of strike action, the Law Lords developed the economic tort of intimidation, the effect of which was to bypass the statutory immunity for organizers of strike action. Parliament enacted the Trade Disputes Act 1965 to reverse the decision. Case in full

11. R v Clinton (2012)

The Court of Appeal disregarded the plain meaning of the “loss of control” defence to murder, which excluded “sexual infidelity” from the scope of relevant triggers. This undermined legislative attempts to ensure that infidelity was not available as an excuse to abusive men who kill their partners. Case in full

12. Rottmann v Freistaat Bayern (2010)

The Luxembourg Court held, with no textual basis, that acquisition and loss of national citizenship is subject to review in light of EU law. This contravened a core constitutional value of the EU, requiring respect for national identity and essential state functions. Case in full

13. Hirsi Jamaa v Italy (2012)

The Strasbourg Court determined that irregular migrants from Libya intercepted on the high seas by Italian authorities therefore fell within Italy’s jurisdiction and that returning them without processing each case breached Art 3 of the ECHR. The Court misconstrued both Art 3 (forbidding torture and inhuman or degrading treatment), and Protocol 4’s prohibition of collective expulsion, and thus undermined the treaty agreement between Italy and Libya and all attempts to limit the flow of irregular migrants into Europe. Case in full

14. R (Huang) v Secretary of State for the Home Department (2007)

The Law Lords held that a person with no legal right to enter or remain in the UK cannot be deported if this prejudices that person’s family life in a manner “sufficiently serious to amount to a breach of Art 8”, and that such cases need not be regarded as exceptional. With this standardless “test”, the Law Lords displaced to judges’ policies the assessment of elected politicians as to where the appropriate balance lies between family life and immigration control. Case in full

15. Norris v USA (2010)

The Supreme Court wades deep into extradition policy to hold that Art 8 is a bar to extradition to face criminal prosecution or to serve a sentence, if the purpose served by extradition is outweighed by the effect on the alleged offender’s private or family life. Case in full

16. Secretary of State for Foreign and Commonwealth Affairs v Rahmatullah (2012)

The Supreme Court approved the issuing of a writ of habeas corpus in respect of detention of the claimant by United States authorities, on the ground that the Secretary of State might be able to procure the detainee’s release. Case in full

17. Secretary of State for Education v Tameside Borough Council (1976)

The Education Act 1944 gave the Secretary of State discretion to give directions to a local education authority if satisfied that it was “acting unreasonably”. The Law Lords improperly sought to control this ministerial discretion by requiring the Secretary of State to defer to a local authority in the way a court would defer to an administrative authority. Case in full

18. Roberts v Hopwood (1925)

A local authority set a minimum wage for council employees at a rate far in excess of the average national wage. With no support from the legislation establishing local authorities and regulating their powers, the Law Lords held that local authorities have a fiduciary duty to ratepayers.

19. Al-Skeini v United Kingdom (2011)

The Strasbourg Court radically expands the reach of the ECHR by misinterpreting the idea of “jurisdiction” in Art 1, departing without explanation from its own earlier authoritative decision in Bankovic v Belgium. This decision retrospectively expanded the scope of Convention rights beyond their intended remit, requiring extraterritorial application of the ECHR to the Iraq war (where it manifestly did not fit: Hassan v UK (2014), in substance redrafting Art 5). Case in full

20. R (Quila) v Secretary of State for the Home Department (2011)

The Supreme Court quashed the Immigration Rules banning entry for settlement of foreign spouses or civil partners under the age of 21 and overruled the reasonable judgment of the Home Secretary about how to combat forced marriage. The Justices in effect substituted their own view on a very tricky policy question and did so in a way that failed to give adequate weight to relevant interests beyond those of the individuals before the court. Case in full

21. Smith v Ministry of Defence (2013)

Further entangling the UK military in the net of human rights law, the Supreme Court went beyond the established case law of the Strasbourg Court to hold that the ECHR and the HRA extended to UK soldiers on active duty abroad. The Court also extended the common law of negligence to military action abroad, inviting further litigation and posing a considerable risk to British military capacity. Case in full

22. Tyrer v United Kingdom (1978); Golder v United Kingdom (1975)

In these two cases the ECtHR set out the “living instrument” approach, which has been used repeatedly since to rationalize the misinterpretation of the ECHR in ways that depart from both the plain meaning of the text and the certain intentions of the signatories. Tyrer v United Kingdom in full; Golder v United Kingdom in full

23. Secretary of State for the Foreign and Commonwealth Affairs v R (Bancoult) (2007)

The Court of Appeal held that an Order in Council legislating in a British overseas territory was subject to judicial review and irrational. The Court in this way took over the Crown prerogative of legislation in overseas territories and flouted the Colonial Laws Validity Act 1865. The judgment perversely rules irrational the UK’s interest in the defence not only of the territory in question but also of the UK and its other dependencies. The House of Lords corrected most but not all of these errors on appeal. Case in full

24. R (Nicklinson) v Ministry of Justice (2014)

Despite clear Strasbourg case law upholding legislation that bans assisted suicide, a majority in the Supreme Court were willing in principle to go beyond Strasbourg and to tell Parliament that the law on this contentious issue of public policy was contrary to Convention rights and should be reconsidered. The judgment invites further litigation. Case in full

25. Robinson v Secretary of State for Northern Ireland (2002)

The Law Lords adopted an implausible approach to statutory interpretation, ruling that an election in Northern Ireland held outside the time periods set by the Northern Ireland Act 1998 was nonetheless valid. Case in full

26. Van Gend & Loos (1963); Costa v ENEL (1964)

In Van Gend & Loos the Luxembourg Court established the principle of direct effect, finding that community law must be enforced by national courts, even though the founding Members States had devised different mechanisms (expressly laid down in the Treaty of Rome) for enforcing community obligations. In Costa the Court established, without textual justification, a sweeping doctrine that EEC law must prevail over all national law in the national courts of Member States. Van Gend & Loos in full;Costa v ENEL in full

27. Manchester City Council v Pinnock (2010)

Departing from both the case law of the House of Lords and the clear intent of the relevant legislation, the Supreme Court held that Art 8 requires a court to assess the proportionality of the eviction order where possession proceedings are brought by a public authority. This gives rise to delays and expense and undermines the legislative intention that possession claims against occupiers without security, such as trespassers, should be resolved promptly at first instance. Case in full

28. Rabone v Pennine Care NHS Foundation Trust (2012)

The claimant’s daughter committed suicide whilst on home leave from hospital where she stayed as a voluntary patient. The Supreme Court found that the Trust had failed in its duty to protect life under Art 2 in allowing home leave where there was a real and immediate risk of suicide. In this way the Court went beyond Strasbourg jurisprudence and invoked Art 2 to create liability for failure to prevent suicide. The decision has been roundly criticized in medical journals and risks further juridifying health services. Case in full

29. Yemshaw v London Borough of Hounslow (2011)

In interpreting the phrase “violence or threats of violence likely to be carried out”, in the context of legislation about provision for the homeless, the Supreme Court explicitly updates the meaning of the term “violence”. The resulting interpretation is inconsistent with the text of the statute and the intention of Parliament: the Court’s method of interpretation cannot be squared with fundamental principles of statutory interpretation. Case in full

30. R (Bradley) v Secretary of State for Work and Pensions (2008)

The Court of Appeal held that the responses of Ministers to reports or recommendations of the Parliamentary Ombudsman are subject to judicial review. This transformed what was intended to be an informal method of dispute resolution into a justiciable question and undermined the operation of political accountability. Case in full

31. Abdulla v Birmingham City Council (2012)

The Supreme Court decided that a six month time limit on an equal pay claims brought before the Employment Tribunal would not inhibit the pursuit of a remedy in the civil courts, effectively extending the time limit for claims to six years. This decision frustrated the design and purpose of the Employment Tribunal and had the potential to impose crippling financial costs on the public sector to the detriment of national economic interests. Case in full

The Luxembourg Court read an additional objective into the Scottish Government’s Minimum Unit Pricing (MUP) policy, namely to reduce the consumption of alcohol across the Scottish population. It invited the Scottish Government to demonstrate to the national court that, in the pursuit of that secondary aim, MUP would more proportionately curtail EU trade and the free movement of goods than the imposition of a general tax on consumption. The concept of proportionality in this case inappropriately led the Court into questions of policy and political judgment.​ Case in full

33. Chahal v The United Kingdom (1996) ; Saadi v Italy (2008)

In these decisions, the Strasbourg Court misinterpreted Art 3, expanding its scope beyond actions intended to bring about inhuman or degrading treatment to include actions that create a risk that some third party will impose such treatment. The decisions have frustrated deportation of foreign terrorist suspects and also (see no. 13) measures to limit the flow of irregular migrants into Europe. Chahal v The United Kingdom in full; Saadi v Italy in full

34. Greater Glasgow Health Board v Doogan and another (2014)

The Supreme Court adopted a narrow and implausible interpretation of the protection for conscientious objection in the Abortion Act 1967, failing to consider seriously the relevance of section 3 of the HRA or to consider at all the principle of legality, on which the appellants had explicitly relied. Case in full

The House of Lords upended settled law to hold that trade unions can be liable at common law for loss of profits to their employers as a result of strike action. Case in full

36. Al Jedda v United Kingdom (2011)

The Strasbourg Court held that the internment of an Iraqi citizen in a UK-run detention facility in Basra breached Art 5 (right to liberty and security). In doing so, the Court applied the ECHR extraterritorially in a context for which it was not designed. Case in full

37. R v A (No. 2) (2001); Ghaidan v Godin-Mendoza (2004)

In R v A (No 2), the Court undercut “rape shield” legislation, improperly restoring the trial judge’s discretion to allow cross-examination of complainants in sexual assault cases, a discretion that the legislation was plainly intended to limit. In Ghaidan, the Law Lords articulate an approach to rights-consistent interpretation that blurs the distinction between the judicial function and the legislative function, and in so doing compounds the tensions between the HRA on the one hand and the rule of law and democratic principle on the other. R v A (No 2) in full;Ghaidan v Godin-Mendoza in full

38. Pomiechowski v District Court of Legunica 59-220 Poland (2012)

The Supreme Court read down extradition legislation, holding that the irregularity in a notice of appeal filed out of time against an order for extradition to Poland under a European Arrest Warrant could be cured. On this result, one provision can have two different meanings depending on the nationality of the person facing extradition proceedings. Case in full

39. Fairchild v Glenhaven Funeral Services Ltd (2002)

​The Law Lords abandoned the usual “balance of probabilities” test under the “but for” standard. To allow the claimants a remedy, they instead adopted as the test of causation whether the defendant “materially increased risk” of harm. While common law change is not necessarily illegitimate, in bending their approach to provide a more palatable outcome, the House of Lords created unnecessary uncertainty as to the issue of causation in tort law. ​ Case in full

40. Mangold v Helm (2005)

The Luxembourg Court found the German exclusion of those over the age of 52 from protection for short-term contracts to breach the proportionality principle. This decision held private parties liable for violating the terms of an unimplemented directive, designed to give effect to a general principle of EU law (against age discrimination) and went against the general rule that EU directives are not directly effective until implemented by national institutions. Case in full

41. Åklagaren v Hans Åkerberg Fransson (2013)

The Luxembourg Court adopted a dangerously expansive approach to find that a Swedish tax rule fell within the scope of EU law because it involved VAT, an important source of revenue for the EU. The CJEU interpreted Art 51 of the EU Charter very broadly, holding the rule that the Charter is applicable when member states “implement” EU law applies whenever they act “in the scope of” EU law. Case in full

42. Benkharbouche v Embassy of the Republic of Sudan (2015)

In a case involving claims of mistreatment brought by foreign workers in embassies in London, the Court of Appeal determined that Art 47 of EU Charter (right to effective remedies) extended into British law with horizontal direct effect. This resulted in the disapplication of primary UK legislation (the State Immunity Act 1978), which had been introduced by Parliament to insulate embassies from employment claims. The decision also seemed to confirm the irrelevance of Protocol 30 to the Lisbon Treaty, which has been described as a British opt-out from certain provisions of the Charter. Case in full

43. A v Secretary of State for the Home Department (2004)

The Law Lords held that the indefinite detention in Belmarsh Prison of non-British prisoners without trial or deportation was inconsistent with the ECHR and issued a declaration of incompatibility under section 4 HRA to this effect. In so doing, the Law Lords misunderstood the legislation and its animating principle and ignored their section 3 duty. Case in full

The House of Lords found the rejection of the claimant’s application for compensation by the FCC to be unlawful, despite legislation providing that “determination by the [FCC] of any application made to them under this Act shall not be called into question in any court of law”. The Law Lords held that the Commission had misinterpreted the criteria for compensation and, sidestepping the clear words of the Act, held that this error of law meant there was no “determination” but that instead the decision was a nullity. Judicial adventurism in Anisminic paved the way for Racal, where Lord Diplock, in obiter dicta, misinterpreted Anisminic to find that an administrative decision based on an error of law is automatically a nullity. Anisminic Ltd v Foreign Compensation Commission in full;In Re Racal Communications Ltd in full

45. Liversidge v Anderson (1941)

Although perhaps now best remembered for Lord Atkin’s dissent and its rallying call on the need to control the executive, the actual decision of the majority of the Law Lords showed excessive deference to the executive’s wide discretionary powers in wartime, and giving no effect to a statutory provision requiring the Home Secretary to have reasonable grounds for a detention decision. Case in full

46. R (Tigere) v Secretary of State for Business, Innovation and Skills (2015)

The Supreme Court held that the regulations concerning eligibility for student loans that required applicants be “settled” in the UK breached the ECHR by unjustifiably discriminating on the basis of immigration status. The Court applied a more exacting test than the Strasbourg Court and at least two of the judges in the majority implied almost any general rule that did not make provision for discretion in individual cases would be unlawful. Strikingly, the Court undercut clear regulations without even discussing the terms of the empowering statute. Case in full

47. Tinsley v Milligan (1994)

In a trusts law case on illegality and the presumption of advancement, the Law Lords formulated a technical, unsatisfactory test to help a claimant with whom they had sympathy, but without regard to the wider consequence or application. Case in full

48. R (Litvinenko) v Secretary of State for the Home Department (2014)

The High Court quashed the minister’s decision not to exercise her power under the Inquiries Act 2005 to establish an inquiry into the death of Alexander Litvinenko. The High Court ignored the structure of the Act, which relies on the minister’s responsibility to Parliament, and departed from the traditional reach of judicial review for no reason other than that they disagreed with the minister’s decision. Case in full

49. R (Cart) v The Upper Tribunal (2011)

The Supreme Court held that decisions of the Upper Tribunal may be subject to judicial review in cases involving an important point of principle or practice or where there is some other compelling reason. This seemingly rejects jurisdiction as the organising principle of judicial review and replaces it with judicial discretion. The broad test set out by the Court remains open to interpretation, resulting in a significant expansion of the reach of judicial review. Case in full

50. Young, James and Webster v United Kingdom (1981)

The Strasbourg Court held that “closed shop” provisions of trade union legislation in the UK breached Art 11 (right to association). In this, the Court overrode the clear intention of the drafters and signatories to the ECHR who had sought to protect provisions such as then existed in UK and some other national laws for permitting, setting up and maintaining union “closed shops”. Case in full